BY: Chisom Ozoemena
Two major sets of legislation regulated criminal procedure in Nigeria- the Criminal Procedure Code for non- federal courts in the northern parts of Nigeria and the Criminal Procedure Act for courts in the southern parts of Nigeria as well as the Federal High Court. These Acts were handed down to Nigeria by Britain. Other laws providing for the administration of criminal justice in the federation exist and have applied for decades without noticeable development in Nigeria’s criminal justice system. This is evident in the delay of justice and the disregard for the protection of the rights of the suspect, the society and the victims or crime. On the 13th of May, 2015, a new legislation- the Administration of Criminal Justice Act, 2015 was enacted. The Act is the outcome of the efforts of a national working group set up by the then Attorney General of the Federation (“AGF”), Chief Bayo Ojo SAN in 2006 as well as the Panel on Implementation of Justice Reform appointed in 2012 by the immediate past AGF, Mohammed Bello Adoke SAN. The Act provides for one uniform Federal Act. It also repealed the Criminal Procedure Act Cap C41 Laws of the Federation of Nigeria 2004; the Criminal Procedure Act (Northern States) Cap C42 Laws of the Federation of Nigeria; and the Administration of Justice Commission Act Cap A3 Laws of the Federation of Nigeria by section 493.
The purposes of this Act include: ensuring that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions and speedy dispensation of justice; and making a deliberate shift from punishment as a main goal of the criminal justice to restorative justice which pays attention to the protection of the society, and the rights of the suspect, defendant and victims of crime. It is key to note that the Act renamed ‘accused person’ as ‘defendant’ whilst by Section 1(1), the courts and other authorities involved in the criminal justice system are mandated to comply with the provisions of the Act.
The Act applies generally to criminal trials for offences created by Acts of the National Assembly or punishable in the F.C.T and to all criminal trials and proceedings irrespective of the court except there is an express contrary provision to that effect. It defines court as including Federal Courts, Magistrates’ Court and FCT Area Courts provided by legal practitioners. The Act however does not apply to Court Martial trials. Below are some of the innovative provisions of the ACJA:
Section 106 of the Act stipulates that prosecution of all offences in any court shall be undertaken by the AGF or a law officer in his Ministry or Department; a legal practitioner authorized by the AGF; or a legal practitioner authorized to prosecute by law.
This provision is commendable as it lays to rest the issue of lay prosecution as approved in FRN v. Osahon. Only lawyers authorised by law to prosecute would have the power so to do since they are more likely to be grounded in the knowledge of the law. This will help to speed up criminal trials in the best interest of justice.
Sections 30, 31, 32, and 158- 164 make an elaborate provisions on rights of an arrested person to bail. Where Section 118 of the CPA did not provide for exceptions upon which a suspect charged with a capital offence may be admitted to bail by a High Court Judge, section 161 lists some exceptional circumstances which include:
a. Ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a government hospital;
b. Extraordinary delay in investigation, arraignment and prosecution for a period exceeding one year; or
c. Any other circumstances that the Judge may, in the particular facts of the case, consider exceptional.
Section 162 also lists circumstances where a suspect charged with a felony other than a capital offence shall not be released on bail. In the absence of those circumstances it appears the suspect must be released on bail as opposed to Section 118(2) CPA where the power to grant such bail was discretionary (if it thinks fit). The Act permits oral application for bail in non-capital cases.
By section 160 a minor shall, unless it is necessary to remove him from association with a reputed criminal or prostitute, be released on a recognizance entered into by himself or his parent or guardian, with or without sureties. What obtained under the repealed section 121 of the CPA was that a minor cannot himself enter into a recognizance.
Also, money or security deposited must be returned to the defendant or his surety at the end of the trial or on application by the surety to the court to discharge his recognizance.
Objection to a Charge
By Section 220 formal defects in a charge shall not be regarded as material at any stage of the case unless the defendant was in fact misled by the defect. Section 221 provides that objections on the ground of an imperfect or erroneous charge shall not be taken during proceeding or trial.
By Section 222(1) where an appellate court is of the opinion that a defendant convicted of an offence was misled in his defence by the absence of a charge or by a formally defective charge which has occasioned a miscarriage of justice, such court may direct that the trial be recommenced on another charge. Subsection(2) further provides that if the appellate court is of the opinion that the facts of the case are such that no valid charge could be sustained against the defendant in respect of the facts proved, it shall quash the conviction.
It appears from the above that an objection on the ground of formal defects in a charge can no longer be entertained before trial or proceedings have commenced as opposed to the provision of Section 167 of the CPA. This had also been settled in a host of cases including Ezeze v. State, Fawehinmi v AG Lagos State.
In a more recent case (July, 2015) - Igbeke v FRN, a distinction was made between formal defects, objections to which must be taken immediately after a charge is read out to an accused and before a plea is taken, and substantive defects (such as lack of prima facie case disclosed on a charge) or an issue touching on jurisdiction, objections to which can be taken even before arraignment of the accused.
With the new Act, it appears that objections as to formal defects in a charge can no longer be taken before or during trial. Where there is material error as envisaged under Section 220 such objection can come on appeal by virtue of Section 222. This emphasizes the purpose of the Act which is to speed up criminal proceedings in the interest of justice. This does not mean such objections cannot be raised after trial or on appeal where there is evidence of miscarriage of justice arising from the defect.
Plea Bargain Guideline
Section 270 provides for clear guidelines for the application of plea bargaining. It provides that a prosecutor may, with the consent of the victim or his representative, receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf; he may also offer a plea bargain to a defendant charged with an offence.
This plea bargain must be entered before the defence presents its evidence and on the conditions that:
a. the prosecution’s evidence did not prove the offence beyond reasonable doubt;
b. the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative; or
c. the defendant, in a case of conspiracy, has fully aided in the successful prosecution of other offenders.
If the prosecutor is of the view that offer or acceptance of the plea bargain is in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process, he may offer or accept the plea bargain.
The plea bargain agreement must be reduced to writing and contain the terms of the agreement. It must also state that the defendant was informed of his right to remain silent, the consequences of speaking and that he is not obliged to make any confession or admission that could be used in evidence against him. The agreement shall be signed by the prosecutor, defendant, the legal practitioner of the defendant as well as an interpreter if any and forwarded to the AGF.
The presiding judge or magistrate is not to participate in the agreement making. However he must ascertain whether the defendant admits the allegation of the offence charged and if he voluntarily entered into the plea bargain agreement. The enforcement of the plea bargain agreement is subject to the approval of the court after certain considerations have been made.
Where a defendant has been convicted based on the agreement, the presiding judge or magistrate shall consider the sentence agreed and if satisfied that it is appropriate, impose it. If in his opinion it should be lesser, he can impose the lesser sentence; if however he feels it should be heavier he must inform the defendant. The defendant may either agree to the heavier sentence or withdraw from the agreement so that trial may proceed de novo. Where trial proceeds de novo no reference shall be made to the agreement, the parties cannot enter into a similar agreement and no admissions or statements contained therein shall be admissible against the defendant.
Any property forfeited under the agreement shall be transferred to the victim or his representative or other appropriate or reasonably feasible person. Anybody who wilfully and unjustly obstructs the transfer and vesting of such property shall be liable to 7 years imprisonment without option of fine. Where a person is convicted and sentenced under this provision he shall not be tried again on the same facts for the greater offence earlier charged. The court’s judgment on conviction is final and not subject to appeal unless fraud is alleged.
Trials and Summary Trials Generally.
Part 36 provides for trials and summary trials generally. By Section 348 trials shall be held in the High Court on information filed by those capable of instituting proceedings, or summarily in accordance with the Act. Trials shall be held in the Magistrate Court or any other court or tribunal exercising criminal jurisdiction in accordance with the provisions of the Act relating to summary trials.
Section 349 provides that where a defendant charged is not represented by a legal practitioner, the court shall inform him of his right to one and enquire from him if he wishes to engage one or get one engaged for him by way of legal aid. Where the legal practitioner who had appeared on behalf of the defendant ceases to appear in court twice consecutively, the court shall enquire from him if he wishes to engage one or get one engaged for him by way of legal aid.
Where the defendant wishes to engage a legal practitioner he is to do so within 30 days and if he fails to do so the court may engage one for him. The defendant may however opt to represent himself if he wishes- a right granted him by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
By Section 349(7) a legal practitioner, other than a law officer, engaged in a matter is bound to continue until final judgment unless allowed for a special reason to cease from acting by the court suo motu or on application by the legal practitioner which must be served on the court and all the parties not less than three days before the date fixed for hearing.
Section 396 makes provision for day to day trial of criminal cases. Where that is impracticable after arraignment, parties shall only be entitled to five adjournments each and the interval between each adjournment shall not exceed fourteen days. Where the five adjournments have been exhausted and proceedings have not been concluded the interval between adjournments shall not exceed seven days. The court may award costs to discourage frivolous adjournments.
Section 306 provides that an application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.
Section 382 provides that where an information has been filed in court, the Chief Judge shall assign it for trial within fifteen working days of its filing.
Effect of Promotion of High Court Judge during Pendency of a Suit
Section 396(7) provides that notwithstanding the provisions of any other law to the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part- heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time. A proviso exists that prohibits the subsection from preventing the judge from assuming duty as a Justice of the Court of Appeal.
This is a well-meaning provision considering the problem of trial de novo; its practicability is however doubtful unless the 1999 Constitution is to be amended in that respect. This is because the different courts have their different jurisdictions and powers under the constitution. Moreover, it would be inappropriate to allow the same judge hear an appeal on a matter which to his mind he had dutifully decided or worse still vest in him the power to grant leave to an applicant who wishes to appeal his decision. Other irregularities may arise from this kind of arrangement.
Time limitation for Remand Order
Section 296(1) and (2) of the ACJA provide that a remand order shall not exceed 14 days and, if on application, the court extends the remand period, it shall not exceed 14 days. After this period the court may, on application by the suspect, grant bail to the suspect. Pursuant to Section 296(4), if the suspect is still remanded on the expiration of the time limits under subsections (1) and (2) and no trial has been commenced or charge been filed, the court is mandated to issue a hearing notice on the IGP, AGF or COP as the case may be or other relevant authority, within a period not exceeding the time limits under subsections (1) and (2), to show cause why the suspect remanded should not be unconditionally released. If good cause is shown the may extend the remand period to a time not exceeding 14 days for the suspect to be arraigned. The effect of subsections (6) and (7) is that where no good cause is shown the court shall discharge the suspect and no further application for remand shall be entertained.
Power to Dispense with Personal Attendance of Defendant in Certain Cases
Section 266 provides that a defendant shall subject to Section 135 be present in court throughout his trial unless:
a. he misconducts himself in a manner as to render his continuing presence impracticable or undesirable;
b. at the hearing of an interlocutory application; or
c. Where he authorizes his legal practitioner in writing to represent him in his absence or dispense with his physical presence.
This is worthy of note in that the CPA in its Section 210 does not include b and c above.
Appeals from a Magistrate Court to the High Court of FCT
Section 485 provides for procedure of appeal from a magistrate court to the High Court of FCT- such appeals shall be in accordance with the High Court Act of the Federal Capital Territory or any rule made under such Act. The appellant must commence the appeal by giving notice to the registrar of the court from which the appeal is brought stating the grounds of his appeal and such notice shall be signed by the appellant or the legal practitioner representing him.
The notice shall be brought before the expiration of 30 days after the decision appealed against has been made. The appellant is to file as many copies of his brief of grounds of appeal as there are parties to be served, in addition to copies for the court.
A sentence by a magistrate court shall take effect not withstanding an appeal unless a warrant has been issued under Section 326 dealing with sale of property or an order for release on bail pending further proceedings has been made.
Electronic Recording of Confessional Statement
Section 15(4) of the Act provides that where a person arrested with or without a warrant of arrest volunteers to make a confessional statement, the police officer shall record the statement in writing or may record the making of the confessional statement electronically on a retrievable video compact disc or such other audio visual means. When compared with Sections 13(3) and 9(3) of ACJL Anambra State, 2010 and Lagos State, 2011 respectively, the Act does not make electronic visual recording mandatory.
Establishment of a Police Central Criminal Registry and Recording of Arrest
Section 16(1) of the ACJA makes provision for the establishment, within the Nigeria Police, a Central Criminal Record Registry where all records of arrests and convictions across the country shall be stored.
The establishment of Central Criminal Record Registry will ensure that all arrests and judgments are well documented. This is intended to avoid a repeat of what happened in the case of Agbi v. Ibori.
Section 15 of the Act provides for mandatory record of personal data of an arrested person including: the alleged offence(s), the date and circumstances of the arrest, and so on.
Wrongful Arrests, Notice of reason for arrest and Protection of some other rights
Section 18 of the Act does away with Section 10(1)(i) of the CPA. Also, Section 7 of the Act specifically prohibits arrest in lieu of the suspect. Sections 5 of the CPA and 38 of the CPC provide for giving notice to suspect of reason for arrest. The ACJA retains this provision in section 6. However, it adds in Section 6(2) that the police officer or any other person making the arrest must inform the suspect of some other rights basically re-echoing Section 35(2) of the 1999 Constitution of the Federal Republic of Nigeria
The Act in Section 8(1) reiterated the human right constitutional provision of the right to dignity of person. By Section 167(3), a person shall not be denied from entering into a recognizance or standing as surety for any defendant or applicant on the ground only that the person is a woman. This is in line with Section 42 of the 1999 Constitution as well as the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Other provisions exist such as: Section 10 of the ACJA provides for mandatory inventory of items recovered from an arrested suspect; Section 187 which provides for professional Bondspersons. Service of criminal processes by a reputable courier company in accordance with the Act is possible by virtue of Section 392. The Act also provides in Section 109 for time limits for cases to be tried and concluded in a magistrate court. It provides in Sections 302 and 303 for no case submission by the defence and replies and for guidelines the court may follow in reaching a decision based on the submission. This has been provided in cases such as Ajibola v. State. There is provision for non- custodial sentences such as suspended sentence, community service, parole and probation in Part 44 of the ACJA
The provisions of the ACJA are a welcome development to the administration of criminal justice system in Nigeria in view of the inclination towards restorative justice as well as speedy dispensation of justice. However the Act has apparently created some more problems as can be gleaned from the foregoing. Some sections such as the provisions on prosecution and speedy trial are impracticable and some others such as the provision relating to promotion of judges are unconstitutional.
Another challenge the Act is likely to face is the enforcement of its provisions as there are certain facilities that have to be put in place before certain provisions can be implemented.
A recommendation that is proposed is for the privatization of prisons in line with the desire to decongest prisons and speed up criminal proceedings. If the Government enters into contracts with managers of private prisons where it has to make certain payments for every suspect awaiting trial in a prison for more than six months, this could motivate the government to ensure, and not just provide on paper, speedy dispensation of criminal justice.
 * Chisom J.O Ozoemena, LL.B., University of Nigeria. E-mail: email@example.com
 Section 1 of the ACJA
 Section 2 of the ACJA
 Section 2(2) of the ACJA
 (2006) 5 NWLR pt. 973 p. 361.
 This means that police men who have the power to prosecute criminal matters must be lawyers to be so qualified.
 Section 32 of the ACJA
 Section 155(3)
 (2004)14 NWLR pt.894 pp.504-505.
 (1989)3 NWLR pt.112 p.707.
 (2015) 3 NWLR pt.1445 pp.56-57.
 See also section 396(2) ACJA
 Section 270(2) of the ACJA
 Section 270(3) of the ACJA
 Section 270(7) of the ACJA
 Section 270(10)
 Section 270 (11)
 Section 270 (15)
 Section 270 (16).
 Section 270 (12).
 Section 270 (18).
 See also section 267(4) ACJA.
 Section 296(3).
 Section 485(3).
 Section 485(6).
 Section 485(7).
 Section 485(12).
 (2004) 6 NWLR pt.868 p.78.
 Section 34 of the 1999 Constitution
 (1995) NWLR pt.414.